High Court Ruling On Forfeiture Should Trouble Conservatives

March 12, 1996|By George Will, Washington Post Writers Group

WASHINGTON — In 1827, in a case concerning the forfeiture of a Spanish ship used for piracy, the U.S. Supreme Court held that the owner could lose his ship even if he was not even aware of the use of the ship for piracy: ''The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing.''

That, and a long line of cases in that vein, is why the court last week stated that Tina Bennis has no right to compensation for her half-interest in the car she co-owned with her husband, John, and which was forfeited after he was convicted in Detroit of engaging in sexual activity with a prostitute in the car.

The court was divided 5 to 4 in rejecting Mrs. Bennis' contention that the forfeiture violated her 14th Amendment right to due process and her Fifth Amendment right not to have property taken without just compensation.

Justice John Paul Stevens, joined in dissent by David Souter and Stephen Breyer (Anthony Kennedy dissented separately), condemned the ''blatant unfairness'' of punishing an innocent person. And Justice Clarence Thomas, although concurring separately in the opinion written by Chief Justice William Rehnquist and joined by Sandra Day O'Connor, Antonin Scalia, Ruth Ginsburg and Thomas, wrote that what was done to Mrs. Bennis by Michigan law was ''intensely undesirable.''

Because many governments are increasingly aggressive in their use of forfeiture as punishment for prostitution, drug and other offenses, this decision, although supported by the most conservative justices, should trouble conservatives. It involves conflicts among three things they value - deference to states' legislative judgments, fidelity to precedent and respect for property rights.

Bennis made his mistake in 1988 in an 11-year-old Pontiac he and his wife had recently bought for $600. The trial court judge had discretion to order payment of half the sale proceeds to ''the innocent co-titleholder,'' but commented that ''there's practically nothing left'' after deduction of police, prosecutorial and court costs. Justice Ginsburg noted that the question at issue was not whether compensating Mrs. Bennis would have been fair but whether compensation was a constitutional right. And Ginsburg's concurring opinion suggests that she would have affirmed such a right had not the car belonged as much to Mr. Bennis as to Mrs. Bennis.

Although Mrs. Bennis neither consented to nor knew of the misuse of the car, Rehnquist cited the court's language in a 1926 case, that it is common ''for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it.'' That practice, the court had stated five years earlier, is ''too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.''

Certainly the court should not casually unsettle what it has firmly fixed. Nor should the court relieve Congress of its role in correcting dubious legal practices.

This decision involves conflicts among three things conservatives value - deference to states' legislative judgments, fidelity to precedent and respect for property rights.

The chairman of the House Judiciary Committee, Rep. Henry Hyde of Illinois, has drafted the Civil Asset Forfeiture Reform Act that would, among other things, strengthen protection of innocent property owners.

Still, sometimes the court has had to say, in effect, ''Well, come to think about it. . . .'' It took four years of carnage and then the 13th Amendment to correct what the court did in 1857 in Dred Scott vs. Sanford. But in other cases, the court has tidied up after itself.

In 1896 in Plessy vs. Ferguson, the court held that ''separate but equal'' public facilities segregated by race were compatible with the 14th Amendment's guarantee of equal protection of the laws. Later, the court conducted a protracted retreat from that position.

In 1905 in Lochner vs. New York, as in similar cases, the court held that a New York law limiting bakers to a 10-hour workday violated the Due Process clause. By 1963, Justice Hugo Black could assert that the Lochner doctrine of ''substantive due process,'' that the court can overturn laws it considers unwise, ''has long since been discarded.'' (Actually, it has long since been smuggled into liberal jurisprudence to support a different social-policy agenda.)

In his obviously uneasy concurring opinion in the court's decision about Mrs. Bennis' car, Justice Thomas writes that the case ''is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable.'' Quite so. So it is time for the political branches of state governments and the federal government to act on the clear signals from Thomas and others concerning the need to protect innocent people who cannot reasonably be considered culpably negligent concerning the misuse of their property.